3. Submissions by Mr Straw

Mr Straw: Thank you. Bore da. I represent, as you are aware, my Lady, John’s Campaign and the Relatives & Residents Association, who broadly represent the interests of those in care, their loved ones and their carers.

If I may, I propose to address seven topics and to do so roughly in the order that they appear in our written submissions. The first is the question of timing of the hearing.

The Inquiry, of course, faces a gargantuan task and has already made extremely impressive progress in its various modules but I would like to highlight, if I may, one of the reasons why delay in this area is a concern to my clients. There is a pressing need to make recommendations which concern the care sector in particular and that’s because restrictions and very onerous restrictions continue to be in place in the care sector. It is very important for the carers, the people who are being cared for, and so on, that those restrictions are reviewed and changed if necessary.

The next topic is the list of issues. We welcome counsel to the Inquiry’s proposals about this, including the date, which is a prompt date of 12 May, that the list of issues will be produced. It is important that those are finalised as soon as they can be because those should be used to inform further requests under Rule 9, requests for disclosure and potentially decisions about expert evidence.

The third topic is a rather longer one, it is the question about additional witnesses and whether additional witnesses, over and above the very long list that have been already Rule 9-ed by the Inquiry, should be called. In our written submissions in paragraph 7 we touch upon this issue but note there that we are taking instructions in light of the recent disclosure about whether additional witnesses ought to be Rule 9-ed.

We have now taken instructions about that and have some more detail we can put forward about our suggestions. We will write a letter with this detail in it to make sure that it is all entirely clear and in writing but I hope it assists just to go over our suggestions at this point.

Our main concern is the issue of the extent to which the care sector featured or should have featured in core decision making.

Now, I am sure that won’t be controversial, not least because in the letter granting our clients CP status, my Lady, you said that our clients were well placed to assist the Inquiry in Module 2B as to whether those interests – those whose interest we represent, including those requiring care and those providing such care were considered as part of the process of core political and administrative decision making in response to Covid-19.

I hope it helps to briefly summarise a few of the reasons why it is important that the interests of those in the care sector were considered in respect of core decision making. The care sector was really at the sharp end of the pandemic response. That’s, in part, because those in the care sector were among the most vulnerable in society but it is in part because the need for care meant that the restrictions which were then imposed in many cases denied people the treatment, the care, the support and the company that they so dearly needed.

There is another reason why the care sector should have had an important part in core decision making which is that it had a knock-on effect for a number of other areas of government, for example decisions as to whether people could be discharged from hospital, often depended on the availability of care outside hospital.

The current proposals by counsel to the Inquiry as to which witnesses will be called, relevant to the issue of care core decision making in Wales, appear largely to be in annex A to the update note in December 2022, under the heading of “Older People”.

Now, three of those – Age UK, Care England and the National Care Forum – appear to us to be England-based and to not include Wales. So it appears to us that they have relationships with Welsh equivalents but don’t necessarily cover that.

The fourth proposal in the CTI’s older people category was the Homecare Association. We understand that is a UK-wide body. It is an important body but it is relatively limited so it covers homecare providers.

With that context in mind, we have a number of further suggestions for additional witnesses, which cover care and Wales specifically. So the first of them is Age Cymru, which is, as we understand it, the equivalent to Age UK in Wales, so it covers those needed care. Secondly, Care Forum Cymru, that, as we understand it, is the equivalent to the National Care Forum but the Welsh version, and that is representing providers. Thirdly, the Carers Trust Cymru or alternatively Carers Wales, and that’s a body which represents unpaid carers.

The fourth suggestion we have is Professor Adam Gordon, he is a suggestion for an expert witness in this area. He is the professor of care of older people in the University of Nottingham. He was the author of the British Geriatrics Society Guidance on Covid-19 in Care Homes and we will provide a CV so that the Inquiry team can consider him and make decisions about that.

Sticking with expert evidence, in paragraph 12 of our written submissions we made suggestions for two other experts, I hope it helps if I briefly mention those. The first of them is an expert about the issue in paragraph 8.3 of our written submissions. That is the issue of the extent to which core decisions were evidence based, for example whether evidence was obtained about the adverse impact of non-pharmaceutical interventions and how that fed into core decisions. We have suggested Professor Carl Heneghan as an expert in that area.

The second expert suggestion relates to the issue in paragraph 8.4 of our submissions. This is the extent to which individual autonomy, individual rights and capacity were taken into account in making core decisions and we have suggested Dr Lucy Series gives evidence about that. She has expertise in law, policy and medicine, so may be well placed to assist the Inquiry on that point.

So that’s additional Rule 9s. The fourth issue which I would like to turn to, if I may, is further questions to existing witnesses or further requests for disclosure. Now, we are in difficulty at the moment to identify specific further questions or specific further disclosure and that’s because we haven’t yet received the Rule 9 statements themselves or the majority of the disclosure that comes with them. So, at this stage, all we have done is put forward some suggestions for general questions and we have asked the Inquiry legal team to consider them and consider ensuring that sufficient witnesses have been asked about them and sufficient questions have been asked.

But just to give a couple of examples of those general topics we have put forward: they are set out in paragraph 8 of our written submissions, together with our 15 February letter.

One example is Public Health Wales, so the extent to which advice by Public Health Wales was taken into account in core decision making. We give an example about that which is a particular document where Public Health Wales in July 2021 recommended that care homes no longer should be closed, in other words the closure of care homes was no longer proportionate. We give that as an example of an issue which we suggest should be explored, the extent to which that Public Health Wales advice was followed in core decision making.

Another example is in paragraph 8.2 of our written submissions, which concerns the balance between what’s been called direct harm and indirect harm in core decision making. Direct harm is defined, as I understand it, in the disclosure as being the harm that comes from Covid, whereas indirect harm is the harm that comes from the response to it, so the measures that had been put in place to protect people from Covid.

The issue is to what extent in core decision making was that balance taken into account. So were there structures in place or systems to help people make that balance, were there decisions made centrally or policies put in place regarding how that balance should be struck and how it should be analysed. Again, we give an example in our submissions about the care context and, again, really the sharp end of decisions of balance made in this field and suggest that statements are taken and questions are asked about particularly that issue, about how the balance was struck.

Moving forwards, we would be grateful for an opportunity to put forward more specific suggestions to the Inquiry legal team about what further questions should be asked and what further disclosure should be obtained. We would be much better placed to be able to do so once we have seen the disclosure and the witness statements, of course. If we do so now it is likely to lead to duplication but we propose that once we receive the first bulk of witness statements and disclosure, then Core Participants at that point have an opportunity to make suggestions to the Inquiry legal team as to what further specific questions should be asked and then it is factored into the timetable the Inquiry legal team’s consideration of that matter, any further requests that they decide are appropriate and then time for the Rule 9 responders to produce further witness statements and produce further disclosure.

It may be difficult to do it at this stage but we suggest consideration is given to timetabling those various steps, so the production of the first round of disclosure to us, our responses to it, specific questions raised by us, CTI’s consideration and then responses by the Rule 9 individuals.

I hope it helps, at this stage, just to give a couple of examples of the type of specific questions which we may ask in order to illustrate the sort of process that we are proposing. One broad issue that we have raised is the extent to which, in core decision making, existing legal and regulatory duties were taken into account.

One quite specific topic in that context concerns the Welsh Government dementia strategy. This was a strategy brought in before the Covid response and the question is to what extent was that taken into account in core decision making. We would seek to ensure that the Inquiry has asked the part of the Welsh Government that was particularly responsible for the dementia strategy – and, as we understand it, that is the Dementia Oversight of Implementation and Impact Group that monitors the implementation of the strategy – we would seek to ensure that the Inquiry has made Rule 9 requests for a response from that group, that the Inquiry has asked for relevant documents, so there is a dementia action plan. There was a policy concerning Covid and dementia that was brought in in September 2021, and those minutes of the Impact Group, and we would also like to ensure that specific questions were asked of the relevant witnesses about this issue.

Another example – and I hope this helps to illustrate the approach that we are proposing – is the public sector equality duty. Again, we would want to ensure that questions have been asked of relevant witnesses about whether that duty was complied with and records of any consideration of that duty in terms of core decision-making.

There are also likely to be further follow up questions that we will propose in respect of the witness statements and the disclosure that’s ultimately received. To pick a couple of examples, the disclosure so far contains, in certain respects, some pretty broad brush assertions. So, for example, responses along the lines of “We engaged with stakeholders”. Now, if the witness statements themselves are similarly broad brush, then we would invite the Inquiry to send further specific questions to those Government bodies and others who respond in that way, for example, “Exactly how did you engage, with whom and what did you say?”

Similarly, so far the disclosure contains little about the impact on individuals and how that fed into core decision making. So far, it largely concerns financial or structural issues. Now, we appreciate, of course, that we have had very little of the disclosure that’s pending so far but, again, that is an area where, if the witness statements themselves are similarly broad brush, then we will invite the Inquiry to make specific requests along those lines.

So that is the topic of further witness questions.

The fifth issue that I hope to cover is the Rule 10 proposals. Thank you for providing us at this early stage with those proposals, it is very useful. In paragraph 13 of our written submissions we raise a number of questions for clarification as to how that might work. Two examples are as follows:

Firstly, the process that’s being proposed largely concerns preparation in advance but often the most important questions will arise during the witness’s own evidence or during evidence given shortly before that witness.

We invite the Inquiry to ensure that some process is brought in to ensure that the Core Participants can effectively participate in those sort of later stage questions. So they can propose questions that arise from the witness’s own evidence or evidence that’s given shortly before it.

Now, it may be and in our experience we find it often is the most effective and efficient way of doing that, simply to give Core Participants an opportunity to ask their own questions, provided, of course, they are limited to exactly what’s come on the day but, at the very least, we invite the Inquiry to consider that matter.

Another example of the issues of clarification is about expert topics. So, it may be that some of the topics that are going to be put to witnesses, the Core Participants, particularly Core Participants, have a special expertise in that topic. For example, it may be about disability and you may think that the disability groups are best placed to ask those questions. We would ask the Inquiry team to consider at least whether in certain respects Core Participants might be asked to put questions in the first instance, if they have a special expertise.

The sixth topic is another short one. It is parliamentary privilege. We agree with the approach proposed by counsel to the Inquiry and agree also that no ruling is necessary from you at this stage, my Lady. But in our submissions we drew attention to a few of the exceptions that arose to the ordinary rule against parliamentary privilege. The main reason for doing so at this stage is really to encourage the people who are going to be responding to the Inquiry’s requests for information about this area to be open and thorough about it and, as we explained there, there are a number of exceptions, if it comes to it, to the parliamentary privilege rule which may be relevant to this Inquiry.

The last area concerns the listening exercise. In Module 3, we made submissions about the listening exercise, which I don’t propose to repeat here, other than just to briefly summarise. So our submissions firstly sought clarification on how the listening exercise will inform the evidence sessions and the main reason for that is to encourage people to engage in the listening exercise. People are much less likely, as far as we understand it, to engage if they think there is no point doing so.

So we sought clarification as to how it may inform the evidence. We also sought clarification in respect of reasonable adjustments, so what adjustments are made to ensure that people who have difficulty communicating and understanding can be involved in it? The reason for raising those points in this module is that, if anything, there is a more pressing need for those changes to be made in respect of this module and that’s because of the timetabling and the hearing here being sooner than that in Module 3.

As we understand it, the process is that there will be the listening exercise first, a report produced summarising it and then that will be disclosed to Core Participants. That would indicate that the listening exercise itself, so far as it relates to this module, needs to conclude within the future three or four months, in order that it can be properly taken into account.

So we suggest that there is a pressing need for those clarifications to be made.

That’s all I hope to address unless there’s anything else you would like me to address, my Lady, those are my submissions.

Baroness Hallett: No, I’m very grateful, Mr Straw. Thank you very much. You reminded me of my words when I granted the two organisations you represent Core Participant status that they would be well placed to assist and that’s exactly what they have been doing. I’m very grateful to you for your submissions and their very constructive response.

As far as the listening exercise is concerned, may I assure everyone there is very much a point to participating in it. I wish to hear from people and I wish to bear very much in mind and take into account when reaching any conclusions and making recommendations the experience of people across the United Kingdom of the pandemic. So please reassure those you represent that we are doing everything possible to allay any concerns that Core Participants may have and to encourage them to participate in what would be a very, very purposeful exercise.

So thank you very much for your submissions. I think now will be time to take a break. We shall come back after the break to Mr Jacobs, Mr Friedman and Ms Henke. Thank you.

(11.13 am)

(A short break)

(11.30 am)

Baroness Hallett: Apologies for the fact that I forgot to say how long the break would be today.

Right, I think now it is time to call on Mr Jacobs for the Wales Trades Union Congress.